"If some version of the plan becomes law, that isn’t the only question. There would need to be rules on how the value of illiquid assets — art, for example — should be calculated"

The New York Times point out an art angle to the proposed tax on unrealized capital gains.

"The covering also wouldn't destroy the work under VARA, and [Judge] Crawford compared it instead to removing and storing a painting from a gallery."

Vermont Law School has prevailed in the VARA lawsuit over its decision to "permanently conceal two murals that depict Black people in a way that members of the law school community consider racist." Story here. For background, start here.

Different Bottle, Same W(h)ine

I've mentioned before that the Deaccession Police have recently been engaged in a project of re-branding themselves as the Monetization Police.

Chief Branding Officer (and Pulitzer Prize winner) Christopher Knight has a new piece in the LA Times complaining about monetization, which he defines as "selling collection art to raise money to pay operating bills or capital expenses." He wags his finger at "opportunistic museums in Baltimore, Brooklyn, Syracuse, San Diego, Palm Springs and elsewhere" who have recently "cashed in art," and says they have been "egged on by a few clueless art lawyers and errant academics."

I'd like to say a word in support of the former group. (By the way it's not the first time Knight has given us clueless art lawyers too much credit when it comes to deaccessioning practices. He once claimed the chairman of the board of LA MOCA was "a Zaretskian who figured that if MOCA was spending money it didn't have, it really didn't matter" because it could always sell off collection art. I responded to that here.)

Knight contrasts the "fine surprise" of UCLA selling a Picasso -- for an estimated $6-8 million -- with the "dismal example" of the Met's recent announcement that it will be selling off a number of duplicate prints and photographs from its collection. The difference, for him, is "the planned use for the funds raised from the sales." In UCLA's case, the money from the sale will be used for future acquisitions. In the Met's case, the money will be used for something else -- "mostly salaries, it appears" -- which is, he says, "appalling."

And here's where the re-branding comes in. "What the Met is doing," he says, "is not traditional deaccessioning, ... although it’s usually misrepresented in the media as such. What the Met is doing is monetizing its collection."

Leaving aside the fact that he fails to explain why what UCLA is doing -- which is taking a work from its collection and exchanging it for money -- is not also monetization, the striking thing to me about the piece is that he never bothers to say why it's appalling to use sale proceeds for other purposes that a museum judges to be valuable.

He does say that the kind of deaccessioning UCLA is engaged in is "a long-standing best practice in the profession," "a long-established museum norm." (Notice how deeply conservative his position really is: this is right because this is how it's always been done.) But he doesn't say why that practice cannot change, why that norm cannot evolve. In other words, he still hasn't answered the question put to him by Brandeis philosophy professor Jerry Samet during the Rose Art Museum controversy more than 10 years ago (just substitute "appalling" for "repulsive"):

"You say:  'Yes, legally it is quite possible to sell museum art and pay the university's bills with the income. Ethically, however, it's repulsive.'

"As the chair of the Committee whose report you discuss, I have to ask:

"'Can you explain what exactly is repulsive about it? If you replace '... and pay the university's bills' in your condemnation with a real description of what those bills are FOR--eg: '... and provide scholarships to students whose families are suddenly unable to afford the tuition' or '... and pay professors instead of canceling courses and cutting back programs', and so on, perhaps you'll rethink your judgment.

"If you STILL think it's repulsive, then you owe your readers an explanation of how you've arrived at this moral view. Is it your view that selling art to do ANYTHING in the world except buy more art is morally repulsive???"

He still hasn't explained how he's arrived at his view; instead he just keeps repeating that it's a violation of long-established norms. (Put another way, long-established norms can and should sometimes be reconsidered.) The closest he gets to an argument is that the Met's sale makes it more likely that other museums will follow suit. But he never says why it would be wrong for those other museums to do so as well.

As I said recently in discussing the Met's "dismal example," once you've identified the works ("duplicates, multiples, copies of the same thing [we have] in better quality") that are to be sold as part of your routine collection management -- call it deaccessioning, monetization, whatever you like -- what difference does it make what you do with the proceeds? We clueless art lawyers are still waiting for an answer.

"U.S. Charges Once-Rising Artist With Selling Raymond Pettibon Forgeries"

The New York Times reports.

"Why Joint Acquisitions May Be the Way Forward for Cash-Strapped Museums"

Clair Selvin has a piece in ARTnews about museums co-owning works, using a Sam Gilliam jointly acquired by Dia and the Museum of Fine Arts, Houston recently as an example.

This is nothing new and the question I have is why not think of this as a possibility when it comes to deaccessioning? If "co-ownership is great" when two museums acquire a work together, why isn't it also great when cash-strapped museum sells an ownership interest in a work to cash-rich museum in another city? "At the heart of it is the benefit of being able to see the work, and I think we’re all distressed when we think about all the works that are never put on view for one reason or another." As I've said before, it's the Ellis Rule in action. Who could possibly object?

"It was the last outstanding criminal case initiated by the collector, Dmitry E. Rybolovlev, in his dispute with Mr. Bouvier in what has been one of the art world’s longest and most bitter entanglements"

NYT: Prosecutor in Geneva Drops Criminal Inquiry in $2 Billion Art Dispute.

"The works, all duplicates from its collection, will be offered in three sales at Christie’s, starting next month"

Katya Kazakina breaks the news that the Met is deaccessioning "219 prints and photographs to help plug a $150 million revenue shortfall resulting from the pandemic."

This should not come as a surprise.

Brian Frye "can't wait to see the deaccessioning police freak out, even though this should be the most unobjectionable kind of deaccessioning. After all, museums sell duplicates to buy new works for their collection with the AAMD's blessing all the time."

So far, the deaccession police have been quiet. Give it time.

As I said in the post I linked above, you've identified 200 some works -- "duplicates, multiples, copies of the same thing [we have] in better quality," according to the Met's director, Max Hollein -- that are to be sold as part of your routine collection management. They're going to be sold anyway. At that point, what difference does it make what you do with the proceeds?

"Net sale agreements are commonplace in the market, and the court easily found that this sophisticated collector had no legal ground to complain when the work was sold in accordance with the agreement he signed."

 Amelia Brankov on the Steinhardt decision mentioned earlier here.

"Ugandan government sues art dealer over UES rent"

"[Asher] Edelman’s art-leasing business, Artemus, and his gallery Edelman Arts haven’t paid rent since April of last year, according to a lawsuit filed by the mission in Manhattan state court Thursday."

"After such consideration, we emphatically reject AWF’s assertion that Google 'comprehensively refutes the panel’s reasoning.'"

The Second Circuit stands by its Warhol-Goldsmith fair use decision, even after Google v. Oracle. The amended decision is here.

They respond to the Blake Gopnik view in this way:

"Just as AWF misreads the fact- and context-specific finding of fair use in Google as dictating a result in the very different context before us, it misreads our opinion as 'effectively outlawing' an entire 'genre' of art 'widely viewed as one of the great artistic innovations of the modern era.' ... As any fair reading of our opinion shows, we do not 'outlaw' any form of artistic expression, nor do we denigrate any artistic genre; as we explicitly state, it is not the function of judges to decide the meaning and value of art, still less to 'outlaw' types of art.

"We merely insist that, just as artists must pay for their paint, canvas, neon tubes, marble, film, or digital cameras, if they choose to incorporate the existing copyrighted expression of other artists in ways that draw their purpose and character from that work (as by using a copyrighted portrait of a person to create another portrait of the same person, recognizably derived from the copyrighted portrait, so that someone seeking a portrait of that person might interchangeably use either one), they must pay for that material as well. ... The issue here does not pit novel forms of art against philistine censorship, but rather involves a conflict between artists each seeking to profit from his or her own creative efforts. Copyright law does not provide either side with absolute trumps based on simplistic formulas. Rather, it requires a contextual balancing based on principles that will lead to close calls in particular cases."

But if there is a genre of art in which artists incorporate the existing copyrighted expression of other artists in ways that draw their purpose and character from that work (as by using a copyrighted portrait of a person to create another portrait of the same person, recognizably derived from the copyrighted portrait), hasn't that genre now been outlawed in the Second Circuit?

Do we now just fight about whether the appropriated art in a given case has been incorporated "in ways that draw their purpose and character" from that work (whatever that means) or, instead, in other ways?

As someone asked when the original decision came down, aren't we still, basically, in the dark?

"If the world as we know it hasn’t ended, the conclusion may be that the world hasn’t ended. That is, museums will have discovered that the flexibility afforded by the ability to stretch the definition of direct care beyond prior thinking, allowing the proceeds from art sales to backfill deficits and fund important initiatives, has not been the calamity some had predicted." (UPDATED)

Mark Gold has a characteristically well-reasoned piece in The Art Newspaper as the AAMD's two-year experiment in allowing proceeds from art sales to finance “direct care” of their collections nears its close.

The anti-deaccession view is presented as a matter of ethics, and, as Gold says, "unquestionably, preserving the objects entrusted to museums’ care is ethical. But isn’t it also ethical to pay employees an equitable living wage, to support programming that contributes to social justice and to keep doors open for the benefit of the communities that museums serve in all sorts of ways beyond owning objects?

Read the whole thing.

UPDATE: Brian Frye: "The key takeaway: 'ethics' isn't just about rules, it's about values. Which ones matter & why?"

The Di Rosa has ditched its deaccessioning plan

Sort of ("We’ve only sold 15 pieces and I don’t think we are going to sell many more at all").

It will "find alternative solutions to its monetary woes, including reducing full-time staff from 20 workers to 12."

Background here.

"The suit alleges that the Thuts consigned fake Giacometti works."

 ARTnews:  Florida Couple Sold Allegedly Dubious Diego Giacometti Works Through Sotheby’s.

"Judge Cohen rejected Steinhardt’s claims, saying he was a 'sophisticated art collector and financier' who never claimed that the consignment agreement had been broken, and did not 'do any diligence of his own.'"

A victory for Hirschl and Adler gallery in a lawsuit involving a "net to you" consignment.

Grossman LLP (which represented the gallery) has a post about it here, concluding: "The case stands as a reminder that, while the law protects against fraud, breach of contract, and other wrongs, it may not protect a party—especially a sophisticated and experienced one—from buyer’s or seller’s remorse."

Three Years for Angela Gulbenkian

 Story here. Background here.

"San Francisco Unified School District broke the law when it voted to cover up a contentious mural at George Washington High School without first examining the environmental impacts, a judge ruled this week in a win for the high school alumni association suing over the issue."

Story here. Background here.

Interesting NFT Tax Issue

From a recent "Wealth Matters" column in the NYT:

"One issue that has not caught up with the technology is how NFTs will be taxed. Cryptocurrency is taxed at the capital gains rate, and many experts say they believe that NFTs will be considered collectibles, which are taxed at a 28 percent rate. But the tax issue gets more complicated because many NFTs are bought using cryptocurrency. So any transaction would be considered a realization of the gains in that cryptocurrency.

"''It’s a perfect example of where the law hasn’t caught up with the technology,' said Jere Doyle, senior vice president at BNY Mellon Wealth Management. 'Collectible in code sections says any work of art, rug or antique, metal or antique, or any other tangible personal property. Would any work of art be tangible or digital? Does tangible modify a work of art? We don’t know.'"

So This Is Chrismas

Eileen Kinsella in artnet news: Notorious Los Angeles Art Dealer Douglas Chrismas Has Been Charged With Embezzling $260,000 From His Former Gallery.

Artist Pension Trust Update

From Robin Pogrebin and Siddhartha Mitter in the New York Times:

"[D]ozens of the artists now say they have deep concerns about the company. It sold very little of their art, they say, made only two rounds of small payouts several years ago and sought to change the contract to make them responsible for storage costs. Artists say that after they objected, the company all but disappeared and they lost track of where their art was being held, something they had expected to be kept abreast of, even though such notifications were not required under the contract."

One artist has sued, "citing breach of contract. Another group of 30 artists in 2018 filed a complaint with a British regulatory agency, which declined to comment."

I was an early skeptic.

"What counts as ‘fair use’? Debate over Warhol's appropriation of Prince photograph rumbles on"

 Martha Lufkin surveys the scene.